LIABILITY CHRONICLE THE LIABILITY NEWSLETTER OF FRANKLIN & PROKOPIK Editor: Stephen J. Marshall Fall 2015 Franklin & Prokopik UPCOMING EVENTS THE PHANTOM MENACE OF PREMISES LIABILITY CLAIMS October 22, 2015 District of Columbia Workers Compensation Breakfast-N-Learn Hunt Valley, MD November 3, 2015 Labor & Employment Seminar Turf Valley, MD April 19, 2016 Maryland Workers Compensation Seminar Hunt Valley, MD See website for more details on all of our events. www.fandpnet.com Inside this issue: Delaware Update 4 Virginia Update 5 West Virginia Update 5 Why There Will Always Be Lawyers... 6 Attorney Direct Dial 7 The vast majority of premises liability cases should be disposed of by way of summary judgment, especially in Maryland, where the law overwhelmingly favors premises owners. With that said, we almost never get summary judgment in Prince George s County, Maryland. I was actually beginning to wonder if the judges were even reading them before issuing their one line orders denying the motion citing the conveniently ubiquitous dispute as to material facts. Given that judges cannot be reversed for denying a motion for summary judgment, but can be for granting one; and given that the motions judge is not going to be the same judge who will have to actually try the case; I guess there really is no incentive for judges to grant dispositive motions. So, you will appreciate that my waning confidence in the judicial system, and the P.G. County Circuit Court in particular, was recently restored when we successfully secured an Order granting our motion for summary judgment in the case of Erica Wright v. Large Chain Retailer, Civil Case # CAL13-33195. The subject of that motion and the reasoning of the Court in granting the same, provide the basis for this article. The issues involved in that case provide us with an excellent road map for dealing with the Phantom Menace both in terms of legal arguments and best post-incident reporting practices. So, what on earth is the Phantom Menace assuming that it s not the Dark Sith Lord from Star Wars Episode I? Phantom Menace is the pet name that we attorneys at Franklin & Prokopik have given to the annoying, never to be identified, store employee, who just happens to immediately arrive at the scene of a slip and fall, and blurts out any of the following statements (or similar versions thereof): My word! Is that dangerous defect still there? I kept telling our manager that we needed to do something about that or someone was going to get hurt. Shame on us. C-ya later ; or I can t believe that we didn t clean up that spill, it s been there for hours and I told management that it was a hidden, hazardous, danger to the general public. Gotta run! ; or Oh, that old piece of broken carpet strip? We would have fixed it weeks ago but we didn t want to spend the money because profits are far more important than safety, at least that s what the boss always says. My shift just ended, I m, outta here. The Phantom Menace is always very difficult for plaintiffs to describe and they never do catch his (or her) actual name. He s never too old, or too young, too big, or too small. He never has any unique features like green hair or a tattoo on his face. In deposition, you might hear a plaintiff discuss the Phantom Menace thusly: He kinda had dreadlocks, or maybe a crew cut, or something in between. It all happened so fast and I was in terri- Quality Representation, Personal Service Phone: 410-752-8700 The B & O Building, Two North Charles Street, Suite 600, Baltimore, MD 21201 Facsimile: 410-752-6868 Easton MD Hagerstown MD Herndon VA Martinsburg WV Tampa FL Wilmington DE
Fall 2015 Page 2 ble pain, so I don t really remember his appearance, but I definitely remember exactly what he said. It really is hard for plaintiffs to win simple premises liability cases. In Maryland, the evidence must show not only that a dangerous condition existed, but also that the proprietor had actual or constructive knowledge of it, and that said, knowledge was gained in sufficient time to give the owner the opportunity to remove it or to warn the invitee. Keene v. Arlan's Dep't Store of Baltimore, Inc., 35 Md.App. 250, 256, 370 A.2d 124 (1977). Whether there has been sufficient time for a business proprietor to discover, cure, or clean up a dangerous condition depends on the circumstances surrounding the fall. See Deering Woods Condo. Ass'n v. Spoon, 377 Md. 250, 833 A.2d 17... (... 2003). What will amount to sufficient time depends upon the circumstances of the particular case, A Plaintiff Must Show: Common Defenses: Practice Tip: and involves consideration of the nature of the danger, the number of persons likely to be affected by it, the diligence required to discover or prevent it, opportunities and means of knowledge, the foresight which a person of ordinary care and prudence would be expected to exercise under the circumstances, and the foreseeable consequences of the conditions. Id. (quoting Moore v. Am. Stores Co., 169 Md. 541, 551, 182 A. 436 (1936)). Further, in the absence of evidence regarding storekeeper s actual or constructive knowledge of an allegedly dangerous condition, it is unreasonable to require constant inspection by the storekeeper. See Carter v. Shoppers Food Warehouse MD Corp., 126 Md. App. 147, 164, 727 A.2d 958, 967 (1999) ( it PREMISES LIABILITY STANDARD IN MARYLAND would not be reasonable to require appellee constantly to inspect the produce section and fix the floor mats each time a corner becomes misplaced or turned up. ). The Court of Appeals has also determined that storekeepers cannot have constructive notice of conditions such as a loose carpet seam where a plaintiff s stumble and footwear may have created the alleged defect. See Leannarda v. Lansburgh's, 260 Md. 701, 706, 273 A.2d 149 (1971) ( [w]e see a clear distinction between a metal They are business invitee as only they can expect the owner to use reasonable and ordinary care to protect against known dangers or those that should be known. The plaintiff must show that the owner either had actual or subjective knowledge of a dangerous condition that caused plaintiff harm. They must also show that the store owner had time to cure the hazard or provide warnings about the dangerous condition. The only duty owed to a trespasser is to refrain from willful injury or entrapment. A landowner has no duty to warn an invitee of an open, obvious, and present danger. Contributory Negligence is a complete bar to recovery in Maryland, it is something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances. Save surveillance video footage from one hour prior to and one hour following the occurrence and take pictures of the area where the plaintiff trips/slips immediately after the occurrence. tread which could have been loosened only by a screwdriver or a long period of sustained wear and tear, and a carpet seam none the worse for wear but vulnerable to the spiked heels of [Plaintiff] or an earlier customer ). It s almost unfair. Of course, it s the tricky old notice element that proves most elusive to plaintiffs and hence the geneses of the Phantom Menace. Except for the Phantom Menace, Plaintiff, Erica Wright, wouldn t have even survived a motion to dismiss. She probably wouldn t have even filed a lawsuit to begin with. Plaintiff, Wright, alleged serious injury further to a slip and fall at my client s retail outlet. She claimed that she fell over a loose rubber transition strip. Her only evidence of notice was that an unidentified, unnamed, store employee, happened on the scene and stated, I m not going to get fired for this, they knew about this, they should have fixed this a long time ago, before exiting stage left. The Phantom Menace may often be brought to light for the first time several years after what was then understood to be a fairly innocuous incident. We often discover the Phantom Menace long after records confirming the identity of
Fall 2015 Page 3 every store employee working at the time of the alleged incident have been lost or destroyed in the normal course of such business affairs. Affirmatively disproving the existence of the Phantom Menace may be difficult, if not impossible, three years post incident. Either way, a plaintiff s sworn testimony as to the existence of a Phantom Menace, even in the face of affirmative proof to the contrary, is usually enough to create the dreaded dispute of materials facts sufficient to defeat a bid for summary judgment. We moved for summary judgment, even despite Defenses: Common Plaintiff Wright s testimony, asking the court to ignore Practice the Phantom Tip: Menace arguing that his alleged statements were inadmissible hearsay and should be ignored; that Plaintiff s lack of any detailed description had denied us of the opportunity to identify the Phantom Menace such that we had been denied the opportunity to cross examine. The Court properly entered summary judgment in our favor when it determined that the record contained insufficient evidence to establish such notice, where the only statement Plaintiff produced in support of her con- A Plaintiff Must Show: A Plaintiff Must Show: Common Defenses: Practice Tip: tention that Defendant possessed notice was the hearsay statement of a completely unidentified male. The Court rejected PREMISES LIABILITY STANDARD IN WEST VIRGINIA That the premises were not reasonably safe from injury and loss, such that a dangerous condition existed that the owner was aware of. Open and obvious doctrine; contributory negligence; and trespassing. In dangerous areas post signs; conduct and document routine inspections; maintain surveillance of the premises by video cameras; and, if possible, have specific shift documentation of any irregularities. PREMISES LIABILITY STANDARD IN VIRGINIA Plaintiff s arguments that the hearsay statement qualified for the exception of being an excited utterance. One of the key factors the Court noted was that Plaintiff had failed to provide any evidence that would show that the Phantom Menace was even a store employee-.i.e. she could not identify any insignia that would tend to show an employment relationship. The Court further noted that Plaintiff had presented no evidence to distinguish whether the Phantom Menace was a stockroom employee, a janitor, a cashier, etc., such that floor conditions would be within the scope of the purported employment. However, in the meantime, let s all consider some better post incident practices which will allow us to affirmatively disprove the existence of the Phantom Menace. Of course, any discussion of post incident practices has to be tempered with the pragmatic The premises of an owner/operator are not reasonably safe for his/her visit and the owner/operator knew or should have known of the unsafe condition. 1) Plaintiff knew or should have known of the unsafe condition, 2) the Plaintiff used the premises that exceeded the scope of invitation, 3) the occupant/owner of the premises warned of the unsafe condition, and 4) the unsafe condition is open and obvious. An occupant of commercial premises must use ordinary care to remove ice or snow from outdoor entrance walks within a reasonable time after the snow stops falling. *Have a procedure and/or contract in place for the immediate removal of ice or snow, i.e.: a snow removal vendor. recognition that every incident is different and one size doesn t usually fit all. If a customer slips and falls and breaks his neck then, of course, no stone will be left unturned and the best post incident practices will be employed to the nth degree. But it s often the more innocuous incidents where the customer gets back up and leaves the store without assistance, but later gets multiple back surgeries, which elude us.
fall 2015 Page 4 Probably, the most obvious and basic measure is to get a list of all store employees who actually worked a shift at or around the time of the alleged occurrence. Providing this list to Claims or Risk Management, together with the incident report, is certainly a great start. However, depending on the size of your business, that list might include anywhere from 2-30 employees. Gathering up thirty employees to provide sworn affidavits or, worse, testimony at trial, three or more years post incident could prove difficult. A large contingent is likely to be former employees or simply outside of the court s subpoena power by the time you need them. And, heaven forbid, you only get twenty-nine out of the thirty, because you know how a good plaintiff s counsel will spin that at trial. One way to overcome the cumbersome logistics of getting every employee to come and testify, that he or she is not the Phantom Menace, is to secure their photographs either from A Plaintiff Must Show: Common Defenses: Practice Tip: their personnel files, or just ask them to take a selfie and text it to you. We then present copies of all photographs to the plaintiff during deposition and demand that plaintiff identify the Phantom Menace. If she does pick out one of the photographs then at least you are down to calling only one witness. Logistical problem solved! Another alternative, and what I would suggest as a best practice option, is to have a portion (maybe even a whole page or separate report) on your standard incident report for every employee to sign under a section that affirmatively states something to the effect of: By signing this document I am hereby affirming that I did not witness this incident, I did not communicate to the individual involved in the incident, and I had no prior knowledge of any condition that could have caused the incident. Post incident, it would then be incumbent on the store manager to go PREMISES LIABILITY STANDARD IN DELAWARE around to every store employee and have them sign that portion of the incident report. A similar approach can be taken with regard to the potential claimant by having a section of the incident report provide something to the effect of: Please note here if there was any statement made to you, or heard by you, by a company employee following the incident. And injured business invitee must show that (1) there was a dangerous or defective condition on the premises; (2) the condition caused the injury; and (3) the condition was created by the owner or an employee, or was permitted to remain after notice of its existence had come or should have come to the attention of the owner or an employee. One key issue is whether the alleged dangerous condition was known or should have been known by the Defendant. The fact that the fall occurred is not in-and-of-itself sufficient to establish that a business owner was ineffective at keeping the store in safe condition. As necessity is the mother of invention, no doubt creative plaintiffs attorney will continue to develop new ways to overcome the legal obstacles in simple premises liability cases. However, with thorough discovery, sound legal argument, and better post incident reporting, the Phantom Menace is not one that we need to let slip through the cracks. If you have any questions regarding this article or any liability, workers compensation, or labor and employment, issues in Maryland, D.C., Virginia or Delaware, please never hesitate to contact Andrew Stephenson (astephenson@fandpnet.com); direct: 410-230-3638; cell: 443-756-6564. Make inspecting the store the responsibly for all employees as store owners are responsible for exercising reasonable diligence in conducting inspections. DELAWARE UPDATE IN THE TRENCHES: F&P DELAWARE CLIENT BENEFITS FROM INDEPENDENT WITNESS IN PREMISES LIABILITY CLAIM Oftentimes in premises liability cases, the identification and statements of eye-witnesses are not recorded in the customer incident report and key evi-
fall 2015 Page 5 dence is lost. In a recent case in Delaware, our firm was defending a large supermarket chain wherein the Plaintiff alleged that she tripped and fell over a u- boat. As a result, the Plaintiff suffered significant injury to her back and neck. Our firm tracked down an eyewitness and deposed him. During the deposition, the attorney asked the eyewitness if there was any other information that he may have that would be important to the litigation. Much to the dismay of the Plaintiff s counsel, the eyewitness explained in detail how he did not understand why the Plaintiff did not see the u-boat and further explained that the u-boat was so obvious and that they clearly must not have been paying attention. This single statement severely diminished the value of Plaintiff s case and underscores the importance of identifying witnesses in the customer incident report. VIRGINIA UPDATE VIRGINIA LEGISLATURE PASSES LAW ALLOWING PHYSICIAN ASSISTANT TO TESTIFY AS AN EXPERT WITNESS In Virginia, under Va. Code Ann. 8.01-401.2, for the first time, a physician assistant may testify as an expert witness in a court of law as to etiology, diagnosis, prognosis, and the treatment plan of a plaintiff. In other words, a physician s assistant may testify on behalf of a plaintiff to the fact that a particular incident, i.e., automobile accident caused a specific injury, and thereby a specific course of treatment is now required for the specific diagnosis. Prior to the enactment of 8.01-401.2, only a doctor of medicine or osteopathic of medicine was able to render an opinion on causation. The practical effect of 8.01-401.2 is that a plaintiff is now able to introduce causation evidence before a jury or judge via a physician assistant and do not need to forge the hefty fee ordinarily required to retain a doctor of medicine. However, the pendulum swings both ways; under 8.01-401.2 the defense, now, may also retain its own physician assistant to counter the opinion of the plaintiff s physician assistant. *Please note that this statute is not applicable in the medical malpractice context.* WEST VIRGINIA UPDATE RECENT DEVELOPMENTS ENACTED BY THE WEST VIRGINIA LEGISLATURE As our readers may recall, we reported in prior Liability Newsletters that the West Virginia Supreme Court of Appeals issued its opinion on November 12, 2013 in Hersh v. E-T Enterprises, Inc., et al., No. 12-0106, ( Hersh ), announcing that the Open and Obvious Doctrine was abolished in the State of West Virginia; thus overturning over 100 years of case law, and that the West Virginia Legislature in its 2015 session, enacted Senate Bill No. 13, which re-established the Open and Obvious Doctrine in the State of West Virginia. Moreover, the 2015 Legislature also enacted legislation relative to the liability of a possessor of real property for harm to a trespasser, as well as legislation establishing a comparative fault standard, and abolishing joint liability and implementing several liability. Specifically, the Legislature enacted West Virginia Code 55-7-27, which provides that a possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to a trespasser except the duty to refrain from willfully or wantonly causing the trespasser injury. Perhaps most important, the 2015 Legislature enacted 55-7-13a, 55-7-13b, 55-7-13c, and 55-7-13d, that established comparative fault as the degree to which the fault of a person was the proximate cause of the injury, death, or damage to property expressed as a percentage; that any damages awarded, shall be allocated in direct proportion to that person s percentage of fault; that the liability of any defendant shall be several only and may not be joint; and that a plaintiff s recovery shall be reduced in proportion to the plaintiff s percentage of fault. In addition, the statute provides that a plaintiff, who through good faith efforts is unable to collect from a liable defendant within a year of final judgment, may move for reallocation against the other parties found to be liable; provided that the court may not reallocate to any defendant an uncollectable amount greater than
fall 2015 Page 6 the defendant s percentage of fault multiplied by the uncollectible amount, and there shall be no reallocation against a defendant whose percentage of fault is equal to or less than the plaintiff s percentage of fault. These reforms are a step in the right direction for the State of West Virginia. They provide greater clarity and certainty for landowners and defendants in the State of West Virginia, while reestablishing a viable affirmative defense in premises liability actions. Hopefully, it will be the beginning of substantive reform in the next several years, and will truly improve the overall environment of West Virginia s plaintiff friendly judiciary. WHY THERE WILL ALWAYS BE LAWYERS... LAWYER ON VACATION A lawyer was on vacation in a small farming town. While walking through the streets on a quiet Sunday morning, he came upon a large crowd gathered by the side of the road. Going by instinct, the lawyer figured that there was some sort of auto collision. He was eager to get to the injured parties but couldn't get near the car. Being a clever sort, he started shouting loudly, "Let me through! Let me through! I am the son of the victim." The crowd made way for him. Lying in front of the car was a donkey. http://www.swapmeetdave.com/humor/lawyer.htm Tamara Goorevitz and Andrew Stephenson will attend the TIDA Industry Seminar in San Antonio, TX October 26-28, 2015. M a r y l a n d s N o n - E c o n o m i c D a m a g e s C a p T a b l e Date of Accident FRANKLIN & PROKOPIK 24-HOUR EMERGENCY RESPONSE Because accidents don't always happen during business hours, Franklin & Prokopik has a 24-hour emergency response system in place for those situations where immediate action is needed to protect your interests. If you would like copies of our emergency response cards, please contact Joan Hartman, our Director of Events and Communications, at jhartman@fandpnet.com or call her at 410-230-3631 and she will be happy to provide them to you. 1-877-752-0001 Cap October 1, 2011 to September 30, 2012 $755,000 October 1, 2012 to September 30, 2013 $770,000 October 1, 2013 to September 30, 2014 $785,000 October 1, 2014 to September 30, 2015 $800,000 October 1, 2015 to September 30, 2016 $815,000 Maryland District of Columbia Delaware Florida Virginia West Virginia WHERE WE RE GOING... Andrew Stephenson will attend the ATA Management Conference & Exhibition in Philadelphia, PA October 17-20, 2015. Speakers Available! We can provide presentations tailored to your specific needs and can satisfy your annual training requirement. Contact Joan Hartman, our Director of Events and Communications, at 410-230-3631 to make arrangements.
fall 2015 Page 7 LIABILIty Defense PRActice group Arnsdorf, Ralph L. + # 410-230-3619 Crawford, William A. Δ 410-230-1099 Goorevitz, Tamara B. + 410-230-3625 Miller, Kara M. 410-820-0600 Randall, Jr., Albert B. 410-230-3622 Skomba, David A. 410-230-3616 Stephenson, Andrew T. 410-230-3638 Marshall, Stephen J. 410-230-3612 Neighbors, Helen D. + 571-612-5929 Rosen, Kiran Sharma + 410-230-1001 Segletes, III, Theodore J. Δ 302-594-9780 Ward, Cheryl A. Δ 302-594-9780 Zenkewicz, Kristine R. 410-230-1019 Bell, Colin 410-230-3604 Dannenberg, Rebecca L.+ 571-612-5936 Dwyer Ami C. 410-230-3635 Fenner, Natalie S.+ ^ 813-314-2179 Akpan, Imoh E. + 410-230-1002 Banach, Jennifer L. 301-745-3900 Fowler, Bradley F. 410-230-3050 Hoffman, Joshua M. + 571-612-5938 Kennedy, Gregory E. 304-596-2277 Akpan, Idara E. + Ayd, Jessica J. + Chiarizia, Emily M. Corso, Scarlett M. Cramer, A. Lauren Gannett, Matthew J. King, Brittany McAfee, John P. McChrystal, Lynne K. + O Brien, Carrie V. + Rahi, Simrah Shevlin, Krista E. Δ Story, David M. Walburn, Ryan M. # Admitted to CA Bar +Admitted to D.C. Bar Δ Admitted to DE Bar ^ Admitted to FL Bar Admitted to NY Bar Admitted to OH Bar Admitted to PA Bar Admitted to VA Bar Admitted to WV Bar * Newsletter Authors Email: FirstInitialLastName@fandpnet.com
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